225 Mass. 521 | Mass. | 1917
This is a bill in equity brought in 1914 to set aside a deed made by Elizabeth B. Dow to the defendant, Frederick W. Flint, to cancel an agreement of trust and to have declared null and void an assignment of three bank books made to him. Questions were submitted to the jury, who found that Elizabeth B. Dow at the time of the execution of the deed, the agreement of trust, and the assignment of the bank books was not of sufficient mind and understanding to make the same, and that they were procured by the undue influence, fraud, duress or coercion of Frederick W. Flint.
The sister of the intestate was asked: “Did you observe any fact . . . about your sister’s conversation, or notice anything that indicated a failing of her mind or that her mind was weakened or affected?” This question was objected to by the defendant Flint on the ground that it called for an expression of an opinion by the witness. The judge properly admitted the evidence. The question asked for a statement of fact; it sought from the witness what she saw, in the conversation or acts of the intestate, indicating weakness of mind. The witness was not asked her opinion, and her answer was a recital of facts observed by her. Gorham v. Moor, 197 Mass. 522.
It was within the discretion of the presiding judge to limit the period of the inquiry into the mental condition of the intestate, and in receiving the evidence of what happened in 1896, it does not appear that the discretion was arbitrary or unfair. This also disposes of the exception to the testimony of Carver.
The custodian of the records of the Danvers State Hospital was permitted to read from them, showing the history and medical treatment of Elizabeth B. Dow, who was admitted to that hospital April 6, 1896, and discharged in an unimproved condition August 24,1896. The records were admissible. Under St. 1912, c. 442, § 2,
Dr. Iiline, the superintendent of the Danvers State Hospital, after examining specimens of Mrs. Dow’s handwriting, stated that they indicated a person advanced in years, an arterio sclerotic or senile person, “by reason of the palsied writing and tremor which is characteristic of that period in life.” We see nothing objectionable in this evidence. The opinion of an expert on insanity, although not an expert in handwriting, was admissible for the purpose of explaining Mrs. Dow’s mental or physical condition. The peculiar characteristics of the handwriting may have been known to the witness and it may have been the handwriting of such a person as he described.
The overruling of the defendant Flint’s motion for a new trial was a matter entirely within the discretion of the presiding judge. Boston Bar Association v. Scott, 209 Mass. 200, 204.
Exceptions overruled.
Order denying new trial affirmed.